How do I handle an employee who keeps calling out sick?
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By state law, you have to provide one hour of paid sick leave for every 40 hours worked. (WA State Paid Sick Leave FAQ) However, once they have exhausted all of their sick leave, you can go to unpaid leave if you choose.
That being said, Washington is an at-will employment state. That means you can terminate an employee for any reason or no reason at all. If you think this employee is not a good fit, you are free to terminate them.
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I have a business in Washington state and I have an employee who keeps calling out sick. He has called out for two weeks straight, but we don’t have enough employees to cover him that long. I know I can’t fire him because he does have a valid doctor’s note, but I had to hire someone because I don’t know how much longer he will continue to call out for. Are there any laws regarding that?
I understand how challenging it can be to manage employee absences, especially when it affects your business operations. How long has this employee been with your company?
Almost 6 months now.
Have you had any discussions with the employee about their absences and the impact on your business?
Not yet.
Is there anything else the employment lawyer should know before I connect you? Rest assured they’ll be able to help with your employee’s absences.
Yes.
Hi, my name is Robert, and I will be happy to help.
Hi Robert, thanks.
If I may, how much time has been taken in leave over the 6-month period? Has the employee sought FMLA leave or any other accommodation?
No, he has not sought FMLA leave or any other accommodation. And, he has not taken any other leave during the 6-month period other than the leave that I described.
Do you have a written leave policy?
No.
By state law, you have to provide one hour of paid sick leave for every 40 hours worked. (WA State Paid Sick Leave FAQ) However, once they have exhausted all of their sick leave, you can go to unpaid leave if you choose.
That being said, Washington is an at-will employment state. That means you can terminate an employee for any reason or no reason at all. If you think this employee is not a good fit, you are free to terminate them.
That wasn’t my question. My question is regarding our legal duty towards that employee. If he is missing that much work, do we have to keep his hours/schedule the same when he returns? How are we supposed to stay staffed if we don’t know how long he will be gone for?
I can terminate them even if they have a valid doctor’s note, and that is the reason they are missing work?
Yes, I understand what your question is and I'm attempting to answer it, I'm afraid like most legal questions, the answers aren't simple.
At the risk of being very blunt, as long as you have allowed the employee to draw down their sick leave to zero, that is the extent of your obligation to them. After that, you may terminate them because you feel like it.
We don’t necessarily need to fire them, but that is good to know. I appreciate the bluntness. If we hired someone to cover their missing shifts while they were out sick, do we have a legal obligation to keep their hours the same when they return? Similar to how there is a rule in place for returning from maternity leave.
If the employee has not sought the protections of the family medical event, no, you are under no obligation to maintain their hours. You are free to either increase or decrease their hours.
Is there a way to check that they have? What if I reduce their hours, and I receive a letter in the mail after I’ve already done that?
They have to tell you about FMLA, you don't have to track it down. If they don't tell you, you aren't bound by it.
If you have any further questions, don't hesitate to reach out
